Opinion
DOCKET NO. A-5199-13T2
04-15-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JABIR T. TAYLOR, a/k/a GILBERT JASON, Defendant-Appellant.
Mark H. Friedman, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Samuel Feder, Assistant Deputy Public Defender, of counsel and on the briefs). Jane C. Schuster, Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney; Ms. Schuster, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Rothstadt and Currier. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 12-02-0287 and 12-08-1182. Mark H. Friedman, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Samuel Feder, Assistant Deputy Public Defender, of counsel and on the briefs). Jane C. Schuster, Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney; Ms. Schuster, of counsel and on the brief). PER CURIAM
Defendant Jabir T. Taylor, a/k/a Gilbert Jason, appeals from his conviction after entering a conditional guilty plea to one count of third-degree possession of a controlled dangerous substance (CDS), cocaine, N.J.S.A. 2C:35-10(a)(1), and one count of third-degree possession of CDS, heroin, with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7. Defendant pled guilty following the court's denial of his motion to suppress. In a single point on appeal, he argues:
The court sentenced defendant in accordance with his plea agreement to an aggregate term of eight years imprisonment with a four-year period of parole ineligibility.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE STATE FAILED TO MEET ITS BURDEN AND PROVE THAT THE OFFICERS' WARRANTLESS TERRY STOP OF THE DEFENDANT WAS SUPPORTED BY REASONABLE SUSPICION.
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
We have considered defendant's argument in light of our review of the record and applicable legal principles. We affirm.
The facts developed at the suppression hearing can be summarized as follows. On November 21, 2011, at approximately 2:30 p.m., Carteret Police Officer David Pomales and his partner, Officer Reyes, were patrolling the Roosevelt Village housing complex in separate vehicles. The officers came upon a group of three to four people whom Pomales did not recognize from his substantial experience patrolling the complex for nine years. The complex had posted signs informing the public that there was "no trespassing" on the premises. In order to determine whether the individuals "belong[ed] there," Pomales and Reyes drove their vehicles from different directions toward the individuals "to stop the[m]." As the officers approached, the individuals began to walk away and Reyes called out for them to stop, but did not pursue the group. Defendant was the only one to cooperate by acceding to the officer's request.
The record does not disclose Reyes' first name.
Reyes began speaking with defendant before Pomales joined them. When he got to them, Pomales asked defendant where he was from, explaining that there had been "a lot of trouble with trespassing" in the area. According to Pomales, he wanted to ensure defendant was not committing an act of "defiant trespass." Defendant confirmed that he did not live in the complex, but indicated that he came "to visit a cousin." At that point, Pomales would not have allowed defendant to leave the scene because it became "more of an investigation." However, if defendant would have given Pomales information to identify a person with whom he was visiting or doing business, and Pomales could confirm such information, defendant would have been free to leave.
Pomales asked defendant to identify his cousin. Defendant told him "Foofa," but could not provide a "real name" or last name, and, when asked where "Foofa" lived, defendant only pointed in the general direction of a building in the complex without giving an address or apartment number. As a result, Pomales asked defendant for his identification, which defendant provided. A warrant check revealed that defendant had "a couple of [outstanding] warrants." Pomales arrested defendant, conducted a search of his person, and discovered CDS in defendant's possession.
After considering Pomales' testimony and the documents admitted into evidence, the motion judge entered an order denying defendant's application, setting forth his reasons in a five-page written decision. According to the judge, the officers conducted a permissible field inquiry when they stopped defendant to question him without denying him the "right to move." The judge relied upon the Supreme Court's decisions in State v. Maryland, 167 N.J. 471 (2001), State v. Davis, 104 N.J. 490 (1986), and State v. Sheffield, 62 N.J. 441 (1973), explaining that a field inquiry is less intrusive than an investigative stop as long as, under "the totality of the circumstances, a reasonable person would [not] feel that the police had encroached on his or her freedom to leave" the scene. Citing State v. Rodriguez, 172 N.J. 117 (2002), the judge pointed out that "[a] mere request for identification does not escalate a field inquiry into an investigative stop, provided the officer asks questions which are not overbearing or harassing, in a conversational tone, or in a manner that is non-confrontational and non-accusatory." Applying these principles, the judge found that Pomales' questions "were limited to questions concerning the reason for [d]efendant's presence in the 'No Trespassing' area." As to Pomales' stop of defendant, the judge concluded:
The objective facts support a finding that defendant was free to leave at any time. There is nothing in the record to suggest that either officer engaged in a form of questioning or employed actions designed to harass, embarrass or humiliate [d]efendant. The questioning of [d]efendant was designed to ascertain if he had a legitimate purpose to be in the housing project. There is nothing amiss in that inquiry. Defendant's questioning dealt solely with his right to be in the complex and served that singular and appropriate purpose.
Turning to the search itself, the judge concluded that, based on defendant's responses to Pomales' questions, the officer had a "well-grounded suspicion" that defendant was committing an act of defiant trespass, N.J.S.A. 2C:18-3(b), by being on the complex's premises. As a result, probable cause existed to arrest and search defendant.
In his appeal, defendant argues the motion judge erroneously found that Pomales and Reyes conducted a "field inquiry" rather than a "Terry stop," and did so without a reasonable suspicion of defendant having committed a criminal act. We disagree.
In our review of a motion to suppress, we "must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Mann, 203 N.J. 328, 336 (2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). We give "deference to those findings of the trial judge which are substantially influenced by his [or her] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). "A trial court's findings should be disturbed only if they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" Ibid. (quoting Johnson, supra, 42 N.J. at 162). Only in those circumstances "should an appellate court 'appraise the record as if it were deciding the matter at inception and make its own findings and conclusions.'" Ibid. (quoting Johnson, supra, 42 N.J. at 162). However, we need not defer to a trial court's "'interpretation of the law' because '[l]egal issues are reviewed de novo.'" State v. Watts, 223 N.J. 503, 516 (2015) (alteration in original) (quoting State v. Vargas, 213 N.J. 301, 327 (2013)).
Under the Fourth Amendment of the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution, "[a] warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement." State v. Cooke, 163 N.J. 657, 664 (2000) (citing State v. Alston, 88 N.J. 211, 230 (1981)). The same is true of the warrantless seizure of a person or property. Terry, supra, 392 U.S. at 19-21, 88 S. Ct. at 1879-80, 20 L. Ed. 2d at 904-06 (seizure of a person); State v. Hempele, 120 N.J. 182, 216-17 (1990) (seizure of property).
The seizure of a person occurs in a police encounter if the facts objectively indicate that "the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter." State v. Tucker, 136 N.J. 158, 166 (1994) (quoting Florida v. Bostick, 501 U.S. 429, 439, 111 S. Ct. 2382, 2389, 115 L. Ed. 2d 389, 402 (1991)). In applying this test, our courts implement the constitutional guarantee to protect the "reasonable expectations of citizens to be 'secure in their persons, houses, papers and effects.'" Id. at 165 (quoting N.J. Const. art. I, ¶ 7).
The constitutional requirements for a field inquiry and an investigatory stop are different. A field inquiry "is a limited form of police investigation that, except for impermissible reasons such as race, may be conducted without grounds for suspicion." State v. Daniels, 393 N.J. Super. 476, 484 (App. Div. 2007) (quoting Rodriguez, supra, 172 N.J. at 126). It is "the least intrusive encounter, and occurs when a police officer approaches an individual and asks 'if [the person] is willing to answer some questions.'" State v. Pineiro, 181 N.J. 13, 20 (2004) (alteration in original) (quoting State v. Nishina, 175 N.J. 502, 510 (2003)). A field inquiry is permissible "[s]o long as the questioning 'is not harassing, overbearing, or accusatory in nature.'" State v. Gibson, 218 N.J. 277, 291 (2014) (quoting Nishina, supra, 175 N.J. at 510). During such a field inquiry, "[t]he person approached . . . need not answer any question put to him [or her]; indeed, he [or she] may decline to listen to the questions at all and may go on his [or her] way." Maryland, supra, 167 N.J. at 483 (quoting Florida v. Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 236 (1983)).
"A key distinction between a field inquiry and an investigative stop is whether, considering the totality of the circumstances, a reasonable person would feel that the police had encroached on his or her freedom to leave." Daniels, supra, 393 N.J. Super. at 484. For instance, "a mere request for identification does not escalate a field inquiry into an investigative stop, provided the officer asks questions which are not overbearing or harassing, in a conversational tone, or in a manner that is non-confrontational and non-accusatory." Ibid. (citing Rodriguez, supra, 172 N.J. at 126).
In upholding the appropriateness of a field inquiry under similar circumstances in Daniels, we observed:
The questioning of defendant was designed to ascertain if he had a legitimate purpose to be in the housing project. We discern nothing amiss in that inquiry. . . . Defendant's questioning dealt solely with his right to be in the complex and, as results would prove, served that singular and appropriate purpose.
[Id. at 485 (citations omitted).]
An investigatory stop, unlike a field inquiry, is characterized by a detention in which the person approached by a police officer would not reasonably feel free to leave, even though the encounter falls short of a formal arrest. State v. Stovall, 170 N.J. 346, 355-56 (2002); see also Terry, supra, 392 U.S. at 19, 88 S. Ct. at 1878-79, 20 L. Ed. 2d at 904. The Terry exception to the warrant requirement permits a police officer to detain an individual for a brief period, and to pat him or her down for the officer's safety, if that stop is "based on 'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." Rodriquez, supra, 172 N.J. at 126 (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). Under this well-established standard, "[a]n investigatory stop is valid only if the officer has a 'particularized suspicion' based upon an objective observation that the person stopped has been [engaged] or is about to engage in criminal wrongdoing." Davis, supra, 104 N.J. at 504.
Applying these principles, we agree that defendant's encounter with Pomales and Reyes amounted to no more than a field inquiry, for the reasons expressed by the judge and the court in Daniels:
There is nothing in the record to suggest that either officer engaged in a form of questioning or employed actions designed to harass, embarrass or humiliate defendant. Additionally, there is nothing in the record to suggest that the officers' actions were pretextual in nature or design. The judge's finding that this was initially a field inquiry is supported by the record. State v. Locurto, 157 N.J. 463, 470-71 (1999).
[Daniels, supra, 393 N.J. Super. at 484-85.]
We find defendant's argument challenging the sufficiency of the proofs adduced at the suppression hearing based upon Reyes not having been called as a witness to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say, the record is devoid of any evidence that Reyes said or did anything to elevate the nature of defendant's encounter to a Terry stop, and defendant's arguments to the contrary are based on pure conjecture and speculation.
We reach that conclusion despite the officer's subjective belief that the encounter escalated to an investigatory stop once defendant failed to provide useful information about either the identity or location of his cousin. See Tucker, supra, 136 N.J. at 165-66 ("[A]nalysis of whether citizens are 'secure in their persons' depends on an objective analysis of all the circumstances of their encounter."). Also, we find no merit to defendant's contentions that the officers conducted an investigatory stop by using their vehicles in an attempt to surround the suspicious individuals and by failing to further investigate the alleged cousin's whereabouts within the complex. The evidence seized from defendant was the result of his arrest for outstanding warrants that were discovered after he provided information about his identity in response to Pomales' field inquiry, see Immigration & Naturalization Serv. v. Delgado, 466 U.S. 210, 216, 104 S. Ct. 1758, 1762, 80 L. Ed. 2d 247, 255 (1984) ("[I]nterrogation relating to one's identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure."), and was not the result of the officer having insinuated that defendant might be in possession of contraband, which would have escalated the field inquiry into a Terry stop. See, e.g., State v. Costa, 327 N.J. Super. 22, 31 (App. Div. 1999) (finding an officer's questions asking the defendant "what are you doing" and "[a]re you doing something that you're not supposed to be doing out here" converted a field inquiry into a Terry stop); State v. Contreras, 326 N.J. Super. 528, 540, (App. Div. 1999) (asking the defendants whether they were in possession of contraband escalated field inquiry into an investigative detention); State ex rel. J.G., 320 N.J. Super. 21, 31-32 (App. Div. 1999) (asking juvenile if there was "anything on him that he shouldn't have" converted field inquiry into a Terry stop).
In Daniels, we rejected a similar argument raised by the defendant as part of his challenge to the trial court's finding of probable cause to arrest. We stated:
[D]efendant contends that his answers did not provide probable cause to arrest him for defiant trespass. Somewhat ironically, defendant argues that because his answers were so evasive, there could have been no way for the officers to ascertain whether he was lawfully there. Therefore, defendant submits that the police could not have had probable cause to arrest him without first conducting their own independent investigation. However, defendant relies on a misreading of the factually inapposite [State ex rel.] J.M., 339 N.J. Super. 244 (App. Div. 2001), to support his argument that the burden was on the officers to prove, through independent investigation, that the non-resident defendant was a trespasser. Additionally, defendant's argument would seemingly reward his failure to cooperate with the police and provide an insurmountable bar for law enforcement to overcome when trying to arrest a person for trespass.
[Id. at 485.]
"While most citizens will respond to a police request, the fact that people do so, and do so even without being told that they are free not to respond, hardly eliminates the consensual nature of the response." State v. Sirianni, 347 N.J. Super. 382, 389 (App. Div.) (quoting State v. Hickman, 335 N.J. Super. 623, 635 (App. Div. 2000)), certif. denied, 172 N.J. 178 (2002).
To the extent that an argument can be made that Pomales' field inquiry escalated into a Terry stop, we are satisfied that "taking together all of the facts recited above, the officer[] had 'a "well grounded" suspicion that a crime [had] been or [was] being committed.'" Daniels, supra, 393 N.J. Super. at 487 (second and third alterations in original) (quoting State v. Waltz, 61 N.J. 83, 87 (1972)). Therefore, "there was probable cause to arrest defendant for defiant trespass." Ibid. --------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION